Research team

Government and Law

Expertise

Theorising and legal analysis as well as interdisciplinary research on (i) Belgian and comparative constitutional law in general, (ii) federalism and multilevel governance, (iii) constitutiuonal review and constitutional courts, (iv) constitutional values and principles: democracy and legitimacy, rule of law, legal certainty and legitimate expectations, and (v) legislative studies.

Comparative constitutional design for divided societies: a model to explain constitutional asymmetries. 01/02/2022 - 30/04/2022

Abstract

The research deals with the following question: What are the legal factors at the basis of constitutional design that can provide determinant conditions to explain the different intensity of constitutional asymmetries in multi-tiered systems? Societies divided along ethnic, religious, linguistic, or cultural lines give rise to challenges of highly practical importance. In fact, the tension between ethnocultural groups may either result in violence (permanent discrimination, civil conflict, ethnic cleansing, genocide) or, even in the absence of violence, have a corrosive effect on the political dynamics of the State, creating stalemate in political institutions or even constitutional crisis. The solutions proposed by academics to address these challenges revolve around two main approaches: integration and accommodation. My first assumption is that asymmetric federalism provides an effective synthesis of the two main approaches, since it presents features of both, and it provides the flexibility that a multinational State requires. My second assumption is that asymmetric federal systems have different intensity of constitutional asymmetries, each having different impacts on the political system. Therefore, the aim of research is to understand whether it is possible to explain the different intensity of constitutional asymmetries. This will be achieved through a model based on a series of legal factors which are distinctive elements of constitutional design for divided societies, and that may lead to constitutional asymmetries. To do so, the research will adopt an unusual methodology for the legal field, namely Qualitative Comparative Analysis (QCA). The ultimate objective of the research would be to provide a flexible model of constitutional engineering. According to the model, it would be possible to determine the intensity of constitutional asymmetries to apply in different multinational States, thanks to the legal analysis of the results emerged by the QCA. Exploring alternative solutions for divided societies could be of shared interest for academic scholars and policymakers for two reasons. The first is that many of these multinational states are in the European Union, which itself may be considered a multinational "entity", therefore European scholars and policymakers may need a new perspective to deal effectively with these issues. The second is that many others are situated in deeply unstable areas of the world, namely in the Middle East (e.g., Iraq, Afghanistan), and it is crucial to understand what model of constitutional design and what degree of asymmetries to apply in a post-conflict environment.

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Safeguards of stability in asymmetrical constitutional systems. 01/10/2020 - 30/09/2023

Abstract

Most traditional federal theory remains grounded in the notion that asymmetrical constitutional arrangements are somewhat exceptional. According to contemporary federal theory, however, recent systems are composed of several tiers of government and different identities. They produce asymmetrical responses by default to accommodate differences arising from complex relationships among tiers and groups. While asymmetrical solutions often seem necessary, this implies that some degree of constitutional asymmetry may provide grounds for the instability of the system. Therefore, a more comprehensive approach is needed to investigate constitutional asymmetries as a cause of instability. It will require identifying safeguards of stability in systems with established constitutional asymmetries by empirically examining the level of stability across all systems and distinguishing factors that undermine or support stability.

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Trust and distrust in multi-level governance: causes, dynamics, and effects (GOVTRUST). 01/01/2020 - 31/12/2025

Abstract

Contemporary governance of society is complex, as public authorities at different levels of government (EU, national, subnational) cooperate with non-state actors in multi-layered decision-making arenas when designing and implementing regulation. This complexity of governance is reflected in the concept of 'multi-level governance'. For a multi-level governance system to perform well, trust is a fundamental condition. While a certain degree of organised distrust between actors may be functional, the recurring reports of declining trust between citizens, private sector organizations, and public authorities at different governmental levels raise severe challenges for society. When trust declines, cooperation between citizens, private organizations, and government, but also between public authorities at the different levels of government is compromised. And without cooperation, effective governance is not possible. However, scientific knowledge about the dynamics, causes and effect of trust and distrust in multilevel governance is underdeveloped. Encompassing research teams from political science and public administration, law, communication sciences and behavioural economics, the research excellence consortium GOVTRUST will study in an interdisciplinary way the dynamics, causes and effects of trust and distrust between the actors involved in multi-level governance. To that end, the consortium will apply mixed research designs with diverse research methodologies, including legal studies, large-N surveys, different kinds of experiments, content analysis, social network analysis as well as small-N controlled case comparisons. With its research program, collaborations and activities the consortium will contribute to scientific knowledge at an international level of excellence, while increasing the international reputation of the University of Antwerp and aiming for a substantial impact on the governance of society.

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Trojan Horse Discourse: The Use and Abuse of Contemporary Constitutional Discourse for Fundamental Rights Protection. 01/01/2020 - 31/12/2023

Abstract

Europe is confronted with a rise of autocratic regimes and tendencies. In this context, academic research and media have reported on Member States relying on current concepts of European constitutional law that structure the interaction and dialogue between the domestic and European legal order for the pu ose of reinforcing its own policy to the detriment of fundamental rights protection. Such concepts often established to reconcile European and domestic constitutional standards of fundamental rights protection and based on a mutual understanding of the minimum thresholds of protection appear hijacked by authoritarian states. The research project aims first to map and understand the current dynamics of this novel evolution to the background of the rationales for these mechanisms. Second it intends to assess whether the current conception of interaction between the European and national legal order on the protection of fundamental rights is to be revisited in order to more effectively prevent constitutional concepts to undermine fundamental rights protection. To this aim, it combines legal analysis with critical discourse analysis.

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Trust in Governance and Regulation in Europe (TiGRE). 01/01/2020 - 30/09/2023

Abstract

TiGRE provides an encompassing and coherent analytical framework for the study of trust relationships in governance. It studies trust among actors of regulatory regimes, such as regulators, political, administrative and judicial bodies, the regulated industries, service providers and their interest organisations, consumers and other societal interests, as well as citizens at large. TiGRE opens thereby new research directions within the tradition of studies of trust relationships between citizens and public authorities. TiGRE's aim is to reveal the role of trust and distrust in European regulatory governance and the ways trust can be maintained, enhanced, repaired and nurtured via administrative practices and reforms. It takes a multilevel governance approach, which includes the EU level as well as the national and regional ones. Trust – both as a pre-condition and a consequence of well-functioning regulatory regimes – is a key factor to be considered in order to capture how these regimes are able to produce effective and legitimate governance. The in-depth investigation of the complex interplay between trust configurations and regulation in different regulatory regimes (finance, food safety, communication and data protection) across levels of governance and in several countries requires the joint effort of experts with wide-ranging experience. TiGRE is run by a tightly integrated multidisciplinary consortium of top-level scholars, who bring together a very broad range of theoretical, substantial, and methodological skills. A cutting-edge mixed-method approach is applied to provide a comprehensive understanding of such multi-faceted trust-related processes. To bridge research with policy and practice, TiGRE provides criteria, indicators and early warning mechanisms for detecting decreasing trust, and scenarios on consequences thereof. They will be validated through interaction with stakeholders and compared with evidence from outside the EU.

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Constitutional strategies in the face of multilevel governance. 01/10/2019 - 30/09/2023

Abstract

This project examines constitutional strategies that secure the jurisdictional integrity of both national and EU law within national boundaries while at the same time providing legitimacy for European claims of supremacy within the national legal system. It identifies enabling strategies, impact strategies and multi-layered strategies to find whether the combination of these strategies lead to an efficiency or a legitimacy strategy. The research looks for factors that determine types of strategies and dynamics within these strategies. It also identifies mechanism to adapt strategies to new developments.

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Quality control throughout the legislative cycle. 01/01/2018 - 31/12/2021

Abstract

Quality control is institutionalized at different moments in the legislative cycle. Three moments are identified in this project. In the internal preparatory phase, regulatory impact analysis is an instrument for better regulation. At the end of the law-making procedure proposals are sent out for advice on legality as well as socio-economic impact. Finally, enacted laws can be reviewed by the Constitutional Court. The purpose of this project is to examine whether the points of quality control throughout the legislative cycle are attuned, whether they are effective, and whether noncompliance by the legislator increases the risk of invalidation of the law.

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Identity vs Values: Co-opting the notion of national identity to circumvent the rule of law and deny fundamental freedoms. 01/11/2020 - 30/09/2021

Abstract

Tha project examines counter arguments pitting notions of national identity against the values enshrined in EU (and international) legal frameworks. It will produce 5-7 scholarly papers with legally-based counter arguments to the "identity vs. values" debate.

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Trust, legitimacy and intended compliance with COVID-19 exit strategy measures. 01/06/2020 - 31/05/2021

Abstract

Hoewel ingrijpende Covid-19 lockdownmaatregelen legitiem waren in de eerste maanden van de crisis, begint de roep om strenge maatregelen geleidelijk aan af te nemen. Burgers eisen dat exit-strategieën ontwikkeld worden met voldoende aandacht voor hun sociaaleconomische belangen, terwijl potentiële inbreuken op grondrechten zoals bewegingsvrijheid, privacy en eerlijke mededinging, en rechtsbeginselen zoals gelijkheid en proportionaliteit, leiden tot kritiek en zelfs rechtszaken tegen overheidsmaatregelen. De huidige overheidsstrategieën zijn hoofdzakelijk gebaseerd zijn op epidemiologisch en medisch onderzoek. De toenemende relevantie van sociale en juridische factoren voor exit-strategieën impliceert echter dat nieuwe data en kennis dringend nodig zijn. In het bijzonder is er behoefte aan inzicht in de voorwaarden waaronder Covid-19 overheidsmaatregelen sociaal legitiem en wettig zijn en burgers stimuleren tot naleving. Ons project verhelpt het gebrek aan wetenschappelijke en beleidsrelevante kennis van sociale en juridische factoren van belang bij Covid- 19 exit-strategieën, door middel van een dubbele onderzoekaanpak: 1) drie vignette surveys bestuderen hoe de nalevingsbereidheid en legitimiteit van combinaties van nieuwe Belgische Covid-19 maatregelen worden beïnvloed door framing op onderliggende volksgezondheids-, sociale en juridische belangen, en 2) een systematische juridische analyse genereert inzicht in de wettigheid van nieuwe maatregelen, en dient tevens als essentiële input voor het ontwerp van voornoemde vignette surveys. Door middel van continue communicatie aan overheden van resultaten uit zowel de vignette survey als de juridische analyse, kunnen we reeds gedurende het project beleidsrelevante input leveren voor concrete maatregelen. Daarmee helpen we overheden om geïnformeerde en gebalanceerde beslissingen te nemen over hun exit-strategieën en helpen we gebrekkige naleving van of rechtszaken tegen Covid-19 maatregelen te voorkomen.

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Project website

FWO sabbatical 2020-2021 (P. Popelier). 01/02/2020 - 31/01/2021

Abstract

The main aim of this sabbatical is the writing of a monography on 'Dynamic Federalism'. This lays down a fundamental theory of federalism in the 21st century that is not, as established theories on federalism are, based on 'model' federations such as the USA and Germany, but that leaves room for more centralist constructs such as UK devolution, more confederal arrangements such as Bosnia and Herzegovina, on multilevel constructions such as the European Union, in which asymmetrical configurations fit, and in which the relations with regional or global organisations are included. Related to this, a book on 'subnational constitutions' is co-edited with two foreign colleagues. Further, I will be continuing my running projects and supervision of PhDs, and I am, with foreign colleagues, setting up a book series on international studies of national parliaments, for which I will co-author the Belgian part.

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BOF Sabbatical 2020-2021 - Patricia Popelier. 01/02/2020 - 31/01/2021

Abstract

The main aim of this sabbatical is the writing of a monography on 'Dynamic Federalism'. This lays down a fundamental theory of federalism in the 21st century that is not, as established theories on federalism are, based on 'model' federations such as the USA and Germany, but that leaves room for more centralist constructs such as UK devolution, more confederal arrangements such as Bosnia and Herzegovina, on multilevel constructions such as the European Union, in which asymmetrical configurations fit, and in which the relations with regional or global organisations are included.

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Literature and case law review on the subsidiarity test 01/02/2018 - 31/05/2018

Abstract

The principle of subsidiarity is a federal principle that seeks a balance between autonomy and coherence which characterizes multi-tiered political systems. Starting point is that competences are exercised at the lowest level, unless regulating at the higher level is more beneficial. In the EU the principle is laid down in Art. 5(1° and (3) TEU and Protocol N° 2, with a political and a judicial enforcement system. Both components are rather weak: an orange card was put forward only three times and led only once to the withdrawal of the proposal, and the Court of Justice has not ever found a violation of the subsidiarity principle. In the overall project an economic and a legal analysis is executed to find how parliaments can have more rip on the subsidiarity test. This part of the project covers the legal section. From an analysis of the ECJ case law, rules of thumb are distracted and a step-by-step plan for the subsidiarity test is designed.

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Antwerp Consortium on the Organization of Rulemaking and Multilevel Governance in Europe (ACTORE). 01/09/2016 - 31/08/2019

Abstract

The core research revolves around the theme of multilevel governance in the EU. The consortium examines how EU multilevel governance impacts upon public policymaking processes in relation to rule-making and rule-implementation, both at the European and the domestic level. Its research program is centered around three interrelated research lines focusing on the complex multilevel governance system of the EU, changing domestic and EU rule-making processes and the legitimacy of the EU multilevel political system. Multilevel governance in the EU has made the organizational and institutional architecture of government and governance institutions much more interdependent and complex, affecting the way national and European societal interests organize themselves, how they secure representation and provide input in order to influence policy outcomes. These developments interact with changing domestic and European processes and outcomes of rule-making. All this ultimately raises questions concerning the legitimacy of how the EU multilevel political system operates and involves citizens and societal groups.

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Supreme courts as guarantee for effectiveness of judicial systems in European Union. 01/04/2016 - 28/02/2017

Abstract

Effective justice systems play a crucial role for upholding the rule of law and the European Union's fundamental values. Quality, independence and efficiency are some of the essential parameters of an 'effective justice system' and are used in the EU Justice Scoreboard to analyze the functioning of all EU Member States' judicial systems. Being the cassation court, the Supreme Courts' essential task is to safeguard legal certainty and legal uniformity and to contribute to the development of law. Supreme Courts are thus a key factor in an effective justice system. Since the Supreme Courts act as Union courts when applying EU law, they also play an important role in the process of coherent application of EU law. Together with the Supreme Court of Latvia, Hungary, Lithuania and Spain, as well as with the University of Ljubljana, the University of Antwerp analyzes the performance of the Supreme Courts in the European Union. The research project focuses on the following questions, all related to the management of the Supreme Courts: 1. How can (Supreme) Courts contribute to legal certainty , consistency and transparency of the law? Embedded within this first research question is the sub-question how to enhance the institutional capacity of Supreme Courts' research and documentation units, which are generally charged with the twofold task of analytical overview of the Supreme Courts case law, as well as in assisting the judges with research. Particular attention will be paid to the research and documentation units' contribution to the correct implementation of EU law. 2. How can the (Supreme) Courts' management be improved and backlogs be reduced in order to guarantee an effective and timely protection of rights? The research will concentrate on best practices in Member States to improve the functioning of the management systems of (Supreme) Courts, with particular attention being paid to streamlined case handling and in-house coordination. 3. How can the (Supreme) Courts' communication strategies with the public be improved? This priority is aimed both at communication with the parties (access of the parties to the case file) and with the general public (information and education of the public). 4. What is the role of the Supreme Courts in the work of the national Councils of Judiciary? More broadly the research project will make a SWOT analysis of the Councils for the Judiciaries' as a crucial actor for enhancing and sustaining the quality of the judicial system. In order to gather and collect the best practices for managing Supreme Courts, the state of the art of the existing research will be established. This desk research will be supplemented by empirical research. A survey has been sent to all Supreme Courts of the European Union. Together with the information collected during study visits, case studies and the desk research, the information of the surveys will be analyzed and used to prepare this best practice guide for managing Supreme Courts. Better court management and the improvement of the transparency of the Supreme Courts' work will not only lead to more efficient case handling, but will also raise trust of civil society and improve the image of Supreme Courts as reliable and user-friendly institutions. The smooth assignment and quicker examination of cases will also lead to better implementation of EU law. By drafting a best practice guide for managing Supreme Courts this research project aims to increase the administrative and judicial capacity of the Supreme Courts and thus increasing the effectiveness of judicial systems. This best practice guide will be presented and distributed to all Supreme Courts of the European Union in April 2017 and will be a useful tool for Supreme Courts to improve their management.

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The role of (constitutional) courts in fiscal governance: the balanced budget requirement. 01/10/2015 - 30/09/2018

Abstract

The reforms in fiscal and budgetary governance triggered by the 2008 financial crisis brought about a major shift in governance architecture and instruments. A prominent feature is the obligation for Member States to have a sound and balanced public budget. This creates a tension between parliamentary democracy, human rights and a sound public financial status. Instead of a top-down approach, a coordinating system is set up that triggers fiscal responsibility at the national level, yielding paradoxical results. While the budget is to an extent depoliticized, a conflict of constitutional principles and values arises. In some cases, the forum for this balancing exercise will be the judiciary - a far cry from their role as the mere bouches de la loi. But the national balancing act – hypothesise a budget in deficit justified on human rights claims - might have important consequences on the European level. A clash between national authorities and the European Commission or the Court of Justice on budgetary matters is a plausible option due to the new regulatory framework. Two research questions are put forward: firstly, what are the normative arguments underpinning judicial involvement? Several problems arise with respect to the separation of powers and the legitimacy questions intertwined with such a review. Secondly, how should judges approach questions related to public finances: for instance, how to discern between structural and cyclical deviations? -

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Constitutional asymmetry in multi-tiered multinational systems. 01/01/2015 - 31/12/2018

Abstract

This project examines constitional asymmetry in multinational federal or quasi-federal states. Multinational systems are often asymmetric: regional entities have different powers, or different means of participation. In traditional federal theory, based on model federal states of the 20th century, both asymmetry and multinationality are considered factors of instability. Yet, (quasi-) federations of the 21th century are often multinational and asymmetric. This is the case in devolving systems such as Belgium, the UK, Spain etc. But differentiation is also a growing issue in the integrative European project. This project aims at examining whether asymmetry is a condition for or a threat to the stability and legitimacy of multi-tiered multinational systems. It examines whether asymmetry is inevitable in these systems and if so, how this can be reconciled with constitutional values.

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The Constitutional Court as initiator of constitutional dialogue: the case of legislative lacunae. 01/10/2014 - 31/05/2018

Abstract

The primary task of a Constitutional Court is safeguarding the fundamental rights of citizens by annulling unconstitutional norms and preventing further application. However, when the court determines that a legislative gap is unconstitutional, this decision does not directly provide for the necessary protection: it merely states that further action is needed to remove the legislative omission. Hence, the question rises whether or not other institutional organs, namely the legislator and the courts, will comply with this statement and whether they will fill the contested legislative lacuna. This is the central research question in this study: how do courts and legislators respond to findings of unconstitutional legislative omissions? By indicating the unconstitutional omission, the court initiates a dialogue, first and foremost with the legislator. It is primarily his task to correct the unconstitutionality. This does not detract from the fact that the Constitutional Court will frequently indicate the proper solution for the legislative lacuna. In addition, ordinary and administrative courts are involved in this initiated dialogue. The cooperation between these three actors – Constitutional Court, legislator and other courts – will provide the excluded petitioner what (s)he is looking for, namely the application of a similar provision to his or her situation.

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The systemic risks of EU law. The possible contribution of EU agencies to mitigation policies in the area of network services. 01/10/2014 - 30/09/2017

Abstract

This research aims to investigate how the EU governs systemic risks in network services and in particular what role EU agencies can play in their mitigation. The main research question is whether the control over systemic risks requires the EU to take responsibility, through specialised actors and on the grounds of the principle of subsidiarity.

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The Role of the Constitutional Courts in Stability and Transformation of Consociational Systems 15/07/2014 - 14/07/2015

Abstract

The thematic area of constitutional politics is somewhat a lonely child – neither really being considered by public lawyers nor political scientists. In the era of 'juristocracy', constitutional courts are increasingly called upon to decide on issues of so-called 'pure politics': matters of an outright political nature and significance that define and often divide entire polities. The consequences of such decisions are particularly grave in consociational democracies, as the courts' decisions will be interpreted differently by the major actor in its divided community – the decision on Brussels-Halle-Vilvoorde being a point in case. Against this backdrop, the project aims at unpacking the black box of constitutional courts from an interdisciplinary perspective, in order to advance the related literature in the fields of comparative politics and constitutionalism. The central research question is: what role does the constitutional judge play in the stability and transformation of consociational systems? To this end, the constitutional courts in consociational democracies are compared, discussing how the courts deal with issues of 'pure politics', and with the territoriality principle in particular; the causes and consequences of judicial selection of constitutional court judges; and the way constitutional courts shape multinationalism and federalism in consociational democracies.

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The role and future of constitutional constitutions in European and Global Governance. 01/03/2014 - 30/09/2014

Abstract

This project represents a formal agreement between UA and on the other hand the client. UA provides the client results mentioned in the title of the project under the conditions as stipulated in this contract.

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The dynamics between national and supranational fundamental rights protection in Europe: a practice of convergence? 01/10/2013 - 30/09/2014

Abstract

This research project aims to expose the dynamics between national and regional rights protection in Europe and establish if these dynamics are one of convergence. The project firstly intends to examine recent reforms concerning the rights protection of European constitutions with the purpose of ascertaining if these reforms are founded on similar or converging ideas of an ideal constitutional model. Consequently, the project will scrutinize recent dynamics in the catalogues of rights of European constitutions to see if newly adopted constitutional rights are transpositions of international/regional rights, or if they originate from national constitutional dynamics. Because similar catalogues of rights in European constitutions are not enough to create European harmonization, the interpretation of these rights remains key. A significant focus will therefore be placed upon whether the methods of interpretation used by constitutional courts in Europe and the European Court of Human Rights are converging. Lastly, with the establishment of the EU Charter - the most recent and vast European collection of rights - and the new important possibility of the European Union acceding to the European Convention of Human Rights, it is essential to evaluate whether this Charter will cause a further convergence of rights protection in Europe.

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Analysis of the internal distribution of fines and non-compliance penalities issued by the Court of Justice. 01/07/2013 - 11/07/2013

Abstract

This project represents a formal research agreement between UA and on the other hand the Federal Public Service. UA provides the Federal Public Service research results mentioned in the title of the project under the conditions as stipulated in this contract.

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The Constitutional Court caught between its role as guardian of consensus democracy and deliberative expectations. 01/01/2013 - 31/12/2016

Abstract

This project aims to offer a systematic empirical understanding of the functioning of the Belgian Constitutional Court within the Belgian consociational system, its role as a venue for legal deliberation and its task to uphold key constitutional principles. This research explores both the performance of the court as guardian of consensus democracy and the deliberative quality of its judgments. It examines the tensions flowing from this dual role, and investigates how the court deals with these tensions.

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The role of constitutional courts in emerging democracies: variations in deliberative practices. 01/07/2012 - 30/06/2016

Abstract

Constitutional review by courts is a significant trend in the last decades. Post-authoritarian democracies tend to establish a strong judicial power for rights adjudication. The relationship between democracy and judicial review, however, is contested, for fear of a "government of judges" and might have a substantial impact on transition processes to democracy. Therefore, newly empowered high courts in emerging democracies are reluctant to exercise their powers assertively or do so only in some policy areas, for fear of provoking retaliation by political leaders. A crucial question therefore is how courts exercise their powers, more precisely how they react to and anticipate political pressure. This requires that courts are studied in an integrated framework that combines legal expertise on judicial reasoning with political science knowledge on the broader context and performance of courts as government agencies. According to deliberative democracy, procedural requirements for rational, transparent and inclusive debate give legitimacy to laws. Courts may act as forum for deliberation by giving the public access to constitutional debate and providing for reason-based justifications. Our starting point is that deliberative venues, such as courts, are key ingredients of democracy, and may play an important part in the transition to democracy. Yet, at the same time politicians may constrain courts in the tasks they aim to fulfil or courts might be reluctant to use their powers to the full extent. This research project seeks to explain variation in the deliberative practices courts develop in the transition to democracy. In order to investigate this variation, the project will construct a theoretical framework as a basis for the empirical analysis. The study will focus on three research questions. RQ 1: whether and how the theory of deliberative democracy can explain fundamental tensions between constitutionalism, including constitutional review, and democracy. First, the tensions between legal and political constitutionalism need to be clarified. Next, we need to assess how this tension impacts upon democratic transition processes. What does it mean for a country to be in 'transition to democracy' and what is the role of constitutional review in emerging democracies? How can courts function as a forum for deliberation in transitory democracies? RQ 2: Do constitutional courts shape the furthering of democracy in countries in transition, by protecting and expanding human and socio-economic rights? This requires an analysis of both the legal framework and the historic and socio-political context in which the constitutional courts operate. We need to gather quantitative data about the legal organization and competences of the courts, who has access to the court and who actually lodges a case, which cases fall within the ambit of the courts and how the courts interpret and exercise their powers, what kind of rights are at stake, how and when these cases are settled. RQ 3: What explains the success of failure of constitutional courts as deliberative agents? Legal and socio-political factors will be taken into consideration. Legal factors concern the procedure and competences of the courts, e.g. whether individuals and interest groups have access to the court, whether courts give voice to those who have been affected by a public policy and whether judges give dissenting opinions. Socio-political factors concern the social, economic, political and cultural environment in which the courts function. Here, we will partially rely on indicators which have been developed in doctrine to explain the role played by courts: transparency, public support, political competition and separation of powers.

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The dynamics between national and regional fundamental rights protection in Europe: a practice of convergence? 01/10/2011 - 30/09/2013

Abstract

This research project aims to expose the dynamics between national and regional rights protection in Europe and establish if these dynamics are one of convergence. The project firstly intends to examine recent reforms concerning the rights protection of European constitutions with the purpose of ascertaining if these reforms are founded on similar or converging ideas of an ideal constitutional model. Consequently, the project will scrutinize recent dynamics in the catalogues of rights of European constitutions to see if newly adopted constitutional rights are transpositions of international/regional rights, or if they originate from national constitutional dynamics. Because similar catalogues of rights in European constitutions are not enough to create European harmonization, the interpretation of these rights remains key. A significant focus will therefore be placed upon whether the methods of interpretation used by constitutional courts in Europe and the European Court of Human Rights are converging. Lastly, with the establishment of the EU Charter - the most recent and vast European collection of rights - and the new important possibility of the European Union acceding to the European Convention of Human Rights, it is essential to evaluate whether this Charter will cause a further convergence of rights protection in Europe.

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Bring Courts in: Amending the Agenda for the New Generation of Democratization Studies. 01/10/2010 - 30/09/2011

Abstract

The research will seek to comprehensively study the role of constitutional courts in democratic development in post-Soviet countries. The basic assumption of this proposal is that the role of courts in democracy-building in these countries, as well as elsewhere in transitional societies, has been underestimated and that the new generation of investments in democratic development should pay a renewed attention to constitutional courts as key pro-democratic agents.

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Judicial transitional law in public and private procedural law: new evolutions concerning the modulation of the effects of judicial decisions in time. 01/01/2010 - 31/12/2013

Abstract

New tendencies indicate that judicial transitional law is at the verge of a new evolution, calling for further research this project will focus in particular on two research questions which will lead to concrete directives for both policy makers and legal practice Research Question 1: What are the theoretical foundations and policy arguments for the principal temporal function of' judgments? Research Question 2. What arguments justify in the practice of courts a modulation of the temporal effects of judgments?

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Multi-layered Polities and the Search for the Common Good: A Constitutional Puzzle for the European Polis. 01/10/2008 - 30/06/2013

Abstract

The debates for political unity in Europe can be captured by this basic question: 'Can we conceptualise a common good for the European polis?' The project identifies two angles from which to pose the question: (i) how might a common conception of the good appear from the point of view of a single - if multi-layered - entity such as the European polis? and (ii) how might it appear from the point of view of regions, whose regional parliaments are also entrusted to legislate for the common good at a subsidiary level of representation. Spanning both questions is that fundamental quandary for democracy: why would the will of a majority (at the EU level) legitimately bind any minority in the absence of a good that is assumed common for both?

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METARULES - Meta-rules and constitutional law: 'co-regulating' legislative processes in Europe? 01/03/2008 - 28/02/2010

Abstract

Given the fundamental importance of legislation to society, legal scholarship has generated remarkably few insights into the norms that effectively govern legislative processes. Between the extra-legal constraints traditionally studied by political science and the formal constitutional framework that is the territory of constitutional law scholarship, a grey area of seemingly bureaucratic rules on lawmaking can be identified. This project refers to these rules as 'meta-rules' and aims to analyse the way they interact with constitutional law. The recent proliferation of 'Better Regulation' policies in Europe has led to a convergence of meta-rules applied in different legislative arenas and to a growing salience of these norms. Many meta-rules overlap with constitutional norms in terms of subject matter, for instance the issue of who gets access to the legislative process. However, these rules are inspired by the paradigm of the regulatory state rather than by the traditional rationale of democratic lawmaking. An example of a meta-rule is 'a legislative proposal can only be put forward if it is accompanied by an impact assessment'. Such a requirement follows a different logic than the assumption that 'the sovereign parliament can initiate laws as it sees fit' which is often part of traditional constitutional frameworks. Are meta-rules as they emerge from increased transnational cooperation in the framework of EU 'Better Regulation' capable of overriding the formal constitutional rules and principles in certain cases? Or do they instead facilitate their implementation in the day-to-day practice of lawmaking? It is proposed to combine macro-level research on meta-rules by expanding existing databases on regulatory policies in Europe with more detailed case-study based analysis. In doing so traditional methods such as elite interviewing and textual interpretation will be combined with methods that are new to legal research, such as quantitative textual analysis.

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The division of powers in the Belgian federal system: from an "exclusive" to a "cooperative" exercise of powers. 01/01/2008 - 31/12/2011

Abstract

The research project will be made up of four parts: 1. First, we will investigate which fundamental principles in fact underlie the current devision of powers in the Belgian federal system. To this end, the judgments of the Court of Arbitration and the advices of the Council of State, Legislation section, will be systematically analysed. Central to this investigation is above all the question of the degree to which the exclusivity principle should or should not be reassessed. 2. In the second part, we will research the extent to which the development under way in Belgium can be explained in terms of the concepts of a "cooperative federal state" and of "multilevel governance". In this part a limited and strictly functional comparison will be made with regard to the phenomena of non-exclusive exercise of powers in other federal states. As well, insights will be presented from the legislative theory of "mulitlevel governance" in a federal context. 3. The third part will examine - by means of the (scarce) European jurisprudence and the practice of the transposition of European directives into national law - whether European law can also shed light on this development. 4. Finally, research will be conducted into whether it is necessary and/or desirable further to refine the rules, in the Constitution and in the special Institutional Reform Act of 8 August 1980, governing the division of powers, including those regarding cooperative federalism, with a view to ensuring a consistent exercise of these powers.

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Study for the implementation of article 35 of the constitution. 01/12/2007 - 01/09/2008

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Proper law making in the European Union. An analysis of the jurisprudence of the European Court of Justice. 01/07/2007 - 31/12/2011

Abstract

The aim of this project is to discover requirements of proper law making in a European Union context. The research relates to European rules as well as national rules with a European dimension. The jurisdiction of the European Court of Justice will be analysed to find legal requirements relating to the quality of laws. This is put in the broader perspective of regulatory management as a EU policy.

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Consultations on draft regulation. An inventory of the Dutch consultation practice. 02/03/2007 - 01/05/2007

Abstract

This project will assess the quality and quantity of the Dutch consultation practice regarding regulatory drafts. It will look at: - the position of consultations in the lax making process: the development of a process of quality management - the functions of consultations in an ideal law making process

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The protection of human rights against violations by the law maker in converging national and European legal systems. 01/01/2007 - 31/12/2010

Abstract

The project aims at analysing, in a comparative way, the interaction of the national and European courts in the protection of human rights against legislative and regulatory action, or the lack thereof. It treats the relations between national courts as well as the interaction of the Court of Justice with national courts. Special consideration is given to the European dimension. In order to ensure the full effect of Community law, Member States must organise their judicial system in such a way that any provision of national law which conflicts with Community law can be set aside. In the field of human rights, national courts thus have to combine the protection afforded within their national legal order with the obligations flowing from Community law as well as with the minimum level of protection imposed by the European Convention on Human Rights. The project examines how problems and bottle-necks can be solved within the existing framework of judicial protection; and to what extent the existing system of judicial protection should be reformed in order to achieve an efficient and coherent system of human rights protection, in which judicial decisions are given within a reasonable period of time.

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Institutional aspects of regulation policy: the organisation of the law giving process. 01/03/2003 - 31/12/2007

Abstract

A policy towards the quality of legislation implies care for the organisation of the legislative process. This project wants to analyse the organisation of the decision making process. It aims to consider the institutional actor's strong and weak points in the legislative process and to find out how these actors can influence the quality of legislation. A comparative study will look for inspiration from abroad to reform institutions in Belgium.

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01/05/2001 - 31/12/2001

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    Review of and comment on the text 'concluding stipulations' for the brochure parliamentary initiatives 01/01/2000 - 28/02/2000

    Abstract

    The 'Cell Legislation' of the Flemish Parliament writes a manuel on the making of laws for the members of the Flemish Parliament. The chapter 'concluding stipulations' about the coming into force and the temporal functions of the law were reviewed, commented and discussed.

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      Democracy as principle of law for legality and transparancy of legilation. 01/10/1998 - 30/09/2000

      Abstract

      The research aims to formulate the democratic state as a principle of public law and to find out to which legal principles, conceming the relation between legislation subject of law. First the concept of the democratie state and the position of the lawgiver are being examined. That framework determines the legal requirements - principles of proper legislation - relating to the democratie quality of legal rules. This way, the democratic quality of various sorts and techniques of regulation can be reviewed.

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